K and D (Children: Sexual Abuse Findings), Re

In child sexual abuse fact-finding, medical evidence must be assessed as part of the totality of the evidence. The court should consider alternative explanations, behavioural indicators and the absence of disclosure, while guarding against confirmation bias. Evidence which is individually ambiguous may be compelling cumulatively.

An appellate court should not interfere with a trial judge’s findings of fact, evaluations or inferences without clear justification. A permissible adverse inference may be drawn from a party’s disengagement where the wider evidence supports it. A specific warning is unnecessary where the party knew the allegations and the findings sought.

The appeal arose from care proceedings concerning K and D, two children who had been removed from their mother’s care and placed in foster care. The Family Court at East London, after a six-day fact-finding hearing, found that K had suffered direct sexual abuse, that F, D’s father, was the perpetrator, and that D had suffered sexual harm through exposure to the abuse.

F did not attend the final hearing but was represented by solicitors who challenged the evidence. He appealed against the findings, arguing that the medical and behavioural evidence was insufficient, that the judge wrongly relied on his non-attendance, and that the absence of a warning breached his rights. The central issues were whether the findings were open to the judge on the totality of the evidence and whether the Court of Appeal should interfere.

1. Procedure for non-attendance. Although F withdrew his proposed application, the court stated that an application under FPR 2010 rule 27.5 to set aside a judgment following non-attendance should be made to the trial judge. A party seeking a new fact-finding hearing on that ground should use that procedure where they reasonably believe that the rule’s three requirements can be satisfied, even if there are other grounds of appeal. The approach in Bank of Scotland v Pereira and others [2011] EWCA Civ 241 applied in the family jurisdiction.
2. Appellate restraint. The assessment and weighting of evidence are primarily matters for the trial judge. The restriction on appellate interference applies to findings of primary fact, evaluations and inferences: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5. Clear justification was required before the court could interfere.
3. Findings concerning abuse. The judge had accurately understood the expert evidence. The medical findings, particularly dynamic anal dilatation, were significant and unusual, with no obvious alternative explanation. They had properly been assessed alongside the children’s presentation and behaviour, alternative causes and the absence of disclosure. The latter was relevant and carried weight, but did not prevent a finding of abuse. The evidence, considered cumulatively, supported the finding that K had been sexually abused.
4. D and identification of the perpetrator. The judge was entitled to find that D had suffered sexual harm through exposure to the abuse of K, without finding that D herself had been directly abused. The judge had considered the opportunities of the possible perpetrators, timing, the children’s views and the different circumstances of F and Y. F’s disengagement when contested findings were imminent, together with his multiple opportunities to abuse K, provided a permissible basis for an adverse inference. No separate warning was required because F knew, or ought to have known, that the court could find that he was the perpetrator. An immaterial error concerning the timing of his contact did not justify interference.
5. The appeal was dismissed. Baker LJ gave the lead judgment; Jeremy Baker LJ and Cobb J agreed.

• Court of Appeal (Civil Division) — dismissed F’s appeal against the findings of sexual abuse and sexual harm.
• Family Court at East London — HH Judge Reardon, on 25 October 2024, found that K had been sexually abused by F and that D had suffered sexual harm, while approving long-term foster care arrangements.